The main purpose of this study is to outline the theoretical and practical problems with regulatory crimes and criminalizing behavior through administrative rules. The discussion shows how laws and rules interact and are carried out in complex ways. Due to this complexity, crafting a solution is extremely challenging and beyond the scope of this report.
Further lines of research would help clarify the problems addressed in this report. For instance, how many regulations in Michigan are no longer properly authorized in statute and thus no longer enforceable? Related, what portion of rule sets cite the incorrect legislative authority? Also, how many rules are duplicative of other rules or statutes?
That said, reformers should keep two broad principles in mind. The first is that the power to define criminal behavior and apportion criminal penalties should be reserved for the Legislature. Defining certain behavior as criminal — and by extension, immoral — and condemning and punishing those who partake in it is a serious power. In fact, it is the government’s most severe power, for it allows the government to deprive people of their basic rights.
It is also a core function of government, separating it from any other type of organization in society. Considering this, and the weighty consequences that it enables, defining criminal behavior should be reserved for the source of the government’s power: the people, or their direct representatives, members of the Legislature.
How to get there from here? There is a long-standing practice of allowing administrative agencies to define criminal behavior through rules that are criminally sanctioned, and moving away from that is, admittedly, difficult. One idea is to pass a law or even a constitutional amendment that says the Legislature must approve each and every rule promulgated under an act that uses a catch-all approach to criminal liability. This would require a lengthy process to carry out retroactively — to have the Legislature vote on each rule that exists for which someone could be held criminally liable.
There may be a more effective approach, which would certainly be more efficient. It is this: Downgrade the criminal punishments of all administrative rules to civil infractions, and then charge agencies with recommending which ones should be criminally punishable. The more limited set of rules that would result could then be voted on by the Legislature, rule by rule, and approved for criminal sanctions or not.
The second broad principle is that the gravest punishment for violating a rule should be directly related to the activity in question. For example, anyone who grossly violates the administrative rules about breeding dogs, racing horses or operating carnival rides should be prohibited from partaking in that activity. And, of course, this would not prevent the use of lighter penalties to encourage compliance, such as fines or temporary suspensions. In fact, this approach to enforcement already exists throughout state law. It should be the default, and criminal punishments should be reserved only for acts that the Legislature determines are a threat to public safety and which it specifically defines.
Overcriminalization at the federal level and through state statue has garnered a lot of attention in recent years, but hiding nearby is the problem of regulatory crimes, or criminally enforceable administrative rules. The growth and abundance of these rules is problematic for many of the same reasons that have caused policymakers to act against statutory overcriminalization. And indeed, regulatory crimes weaken the rule of law and might harm more people than the overabundance of statutory crimes. For these reasons, the state should make a concerted effort to continue to review this problem and evaluate the proper role of administrative agencies and better protect the rights of Michiganders.